Daniels v R
[2011] NZCA 234
•30 May 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA573/2010 [2011] NZCA 234 |
| BETWEEN HONE RANKIN DANIELS |
| AND THE QUEEN |
| CA781/2010 |
| AND BETWEEN BEN PENE DANIELS |
| AND THE QUEEN |
| Hearing: 3 May 2011 |
| Court: Wild, Venning and Courtney JJ |
| Counsel: N M Dutch for Hone Daniels |
| Judgment: 30 May 2011 at 10.30am |
JUDGMENT OF THE COURT
AThe appeal against conviction and sentence by the appellant Hone Rankin Daniels is dismissed.
BThe appeal against sentence by Ben Pene Daniels is also dismissed.
REASONS OF THE COURT
(Given by Wild J)
Introduction
These two appeals were heard together, although the connection between them is remote.
Mr Hone Daniels appeals both against his conviction and sentence. Mr Ben Daniels appeals only against sentence.
At trial in the District Court at Tauranga last July, Mr Hone Daniels was found guilty of threatening to kill while he had a firearm in circumstances that showed he intended to use it in connection with the threat, and on two charges of possession of a firearm without lawful purpose. He was sentenced by Judge Ingram on 19 August last. At the same time, the Judge sentenced Mr Hone Daniels on one charge of burglary and one of receiving. He had earlier pleaded guilty to those charges, which had been transferred from the Hamilton District Court to achieve a single sentencing. The effective sentence imposed was six years imprisonment.
Having pleaded guilty to a charge of receiving, Mr Ben Daniels was sentenced by Judge Tompkins in the Hamilton District Court on 30 September last. The sentences imposed were 150 hours community work and reparation of $620.
The connection between the two appeals is that the appellants are brothers, and Mr Ben Daniels received some of the property stolen in the burglary committed by his brother.
Factual background
The threatening to kill and firearms charges on which Mr Hone Daniels was convicted arose out of the same incident. At sentencing Judge Ingram described the incident in these terms:[1]
At around about 10.30pm on 22 August 2009, you were in the Reclamation car park here in Tauranga, which is the main carpark adjacent to The Strand which is the nightclub entertainment area of Tauranga.
You had been drinking a good deal and approached the complainant, who was talking with one of your brothers. You got into an argument and removed from a vehicle a point .22 calibre semi-automatic rifle, which was loaded. You approached him, pointed the rifle at the complainant and threatened to kill him and to shoot him in the head. You did not do so and eventually returned to the vehicle and swapped the rifle for an air pistol.
You approached the complainant again and made the same kinds of threats, pointing the air pistol at him. You returned to the car, picked up the rifle, again pointed it at the complainant and again threatened to kill him. You did it again with the pistol and then put both of them back in the car.
The Police were called and located the weapons. You denied it; said that somebody else had thrown the weapons into the car.
[1] R v Hone Rankin Daniels DC Tauranga CRI 2009-070-6953, 19 August 2010 at [5]–[8].
The burglary and receiving charge against Mr Hone Daniels arose out of a burglary he committed in Hamilton. From a private residence he took over $30,000 worth of property, including Playstation and Xbox games. Some days after the burglary Mr Ben Daniels sold those games to a retail shop in Hamilton. The victim of the burglary subsequently identified the games. Mr Ben Daniels was apprehended because the purchasing retailer had required him to provide details of his identity.
Mr Hone Daniels’ appeal against conviction
Mr Hone Daniels’ appeal was directed only to the threatening to kill and firearms charges. The narrow point taken was that the evidence of four witnesses (including the complainant) who identified Mr Hone Daniels from a photo montage should have been excluded as unreliable. Mr Dutch advanced this submission on four grounds.
Each of those four grounds is effectively disposed of by Mr Dutch’s concession, in the course of argument, that the identification by facial photo montage procedure followed here was a formal procedure complying in all respects with s 45(3) of the Evidence Act 2006. On that basis alone, the conviction appeal cannot succeed. Notwithstanding that, we will deal with each of Mr Dutch’s four grounds.
First, Mr Dutch submitted that an identification parade should have been offered to Mr Hone Daniels. At the very least, he contended that the photo montage should have contained full body photographs. He explained that these options would have shown height and build as well as facial features. Asked about this in the course of argument, Mr Dutch submitted an identification parade would also have overcome a concern about the clothing being worn. We neither follow nor accept this last point. Whether it is by identification parade or by photo montage, identification is primarily by the face of the offender. In the “as soon as practicable” time span permitted by s 45(3)(a), facial features are unlikely to change but clothing will. We gathered that Mr Dutch was submitting that all the men in the identification parade he contended for should have been dressed in clothing identical to that Mr Hone Daniels was wearing at the time of the incident. Or perhaps his point was that all the men in the parade should at least have been dressed in the same clothing. Whichever it was – and Mr Dutch did not say – his point was surely that identification should be on the basis of facial features and not clothing. That seems to us to undermine rather than support his point that the identification by facial photo montage was unreliable.
The practical difficulties in parading at least seven identically or similarly dressed men are obvious. Parading, or obtaining full body photographs of, at least seven men of similar height and build poses similar difficulties. Those difficulties represent some of the reasons why identification parades are now rare in New Zealand. Although this Court has several times expressed a preference for visual identification, the reality is that identification from a photo montage is now the norm.
Mr Dutch’s second point is that the photo montage identification was unreliable because none of the other people who went to the Reclamation car park in Tauranga in the same car as Mr Hone Daniels were included in the photo montage. Mr Dutch told us that some of these people were “relatives or brothers” of Mr Hone Daniels. The defence case was that it was one of the other people in the car who brandished the firearms. So this second point is a fair one. But it is not one that can impugn the photo montage identification. That is because s 45(3)(b) of the Evidence Act 2006 stipulates only that the formal procedure for visual identification evidence followed – in this case the photo montage – must be one:
(b)in which the person to be identified is compared to no fewer than 7 other persons who are similar in appearance to the person to be identified; ...
Mr Dutch’s third point was that the photograph of Mr Hone Daniels in the montage stands out because its background is white, whereas the background to the other seven photographs is not. Assuming, without accepting, that this is correct, the different coloured background cannot sensibly infringe s 45(3)(c) which provides that the photo montage must be one:
(c)in which no indication is given to the person making the identification as to who among the persons in the procedure is the person to be identified; ...
A different coloured background in one of the photographs is not an “indication” infringing s 45(3)(c). We have already pointed out that Mr Dutch accepted that s 45(3) was complied with in all respects. Mr Dutch’s point was merely that “as a general proposition of fairness a photograph of an accused should not stand out in any way from any of the other photographs in a montage”.
Mr Dutch’s final, somewhat faint, point was that the identification procedure was somewhat delayed, taking place after Mr Dutch’s submission to the Court, when Mr Hone Daniels was granted bail, that someone else in the car had the firearms, not him. The identifications took place about a week after the incident. This point is disposed of by reiterating that Mr Dutch conceded compliance with s 45(3), which includes the requirement that the formal identification procedure be one:
(a)that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; ...
We make a last observation about the conviction appeal. It is that the identification by photo montage was probably not necessary anyway. Ms Ahomiro, one of the four witnesses who identified Mr Hone Daniels from the photo montage, had previously identified him at the scene. She was the sober driver of the car in which the complainant had gone to the Reclamation car park. When the Police arrived after the incident they spoke first to one man, and put him in a police car. Ms Ahomiro then approached a policeman whom she described as “tall” (this was Sergeant Anderson). Her evidence-in-chief at the trial included this:[2]
[2] Notes of evidence 33/7–15; 33/26–34/9.
A.I said to him, “Oh, the guy that’s already in the vehicle, that’s not the one that had the gun, I think yous have got the wrong person.” And he said to me, “Oh, no, he’s been put off on other reason.”
Q.And did you then point out the man with the gun?
A.Yeah. I said, “there he is there,” like he was still walking around, between the different groups.
...
Q.Were you sure that you were pointing out the right person?
A.Yes, I was positive.
Q.How far away was the man who had been making the threats with the gun, how far away from you was he when you pointed him out to the policeman?
A.Probably alike from the same distance of you and I.
Q.Would you say that’s about four metres, maybe?
A.Yep.
Q.Is that fair?
A.Yep.
Q.Four or five metres?
A.Yeah, four or five metres. I don’t know I’m just ...
Q.How many people did you think had got out of that other car this night?
A.About four or five cos I knew there was one girl, there was only one girl and about three or four guys, other guys.
Q.Could you have mistaken any of the others for the man with the gun, when you pointed him out?
A.No.
In cross-examination, Mr Dutch put it to Ms Ahomiro that she had picked out the wrong person. The cross-examination concluded in this way:[3]
Q.I put it to you that you picked out the wrong person –
THE COURT ADDRESSES MR DUTCH
CROSS-EXAMINATION CONTINUES: MR DUTCH
Q.You picked out the wrong person, someone else in that car had the gun?
A.Ah...
THE COURT
Q.What do you say to that?
A.Um, I’m quite positive that it was him.
[3] Notes of evidence 38/18–26.
That unshaken identification by Ms Ahomiro of Mr Hone Daniels as the offender, made at the scene immediately following the incident, would have provided a good reason for not following a formal identification procedure in any event. That is because one of the circumstances set out in s 45(4) which is a good reason for not following a formal procedure is:
(e)if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer’s initial investigation.
We dismiss Mr Hone Daniels’ appeal against his conviction.
Mr Hone Daniels’ appeal against sentence
Mr Dutch took issue only with Judge Ingram’s sentencing starting point of four years imprisonment on the charge of threatening to kill with a firearm, which the Judge took as the lead offence. In Mr Dutch’s submission, the starting point should have been two years imprisonment.
Mr Dutch’s supporting argument drew comparisons with the sentencing guidelines for aggravated robbery in this Court’s decision in R v Mako,[4] and those for offences involving serious violent offending in this Court’s judgment in R v Taueki.[5] Mr Dutch suggested that the starting point here had resulted in an effective sentence comparable to that which would, on Mako guidelines, have been imposed had Mr Hone Daniels robbed someone while threatening them with a firearm. And he contended a lesser sentence would, on Taueki guidelines, have been imposed, had Mr Hone Daniels inflicted moderate injuries, for example, by striking the complainant with the butt of the rifle. The point of these comparisons was to support a submission that Judge Ingram had wrongly focused on the lethality of the firearms wielded by Mr Hone Daniels, rather than the harm – or lack of it – done to the complainant. Mr Dutch argued that the Judge was not entitled to take into account the potential for harm.
[4] R v Mako [2000] 2 NZLR 170 (CA).
[5] R v Taueki [2002] 3 NZLR 372 (CA).
Even more weight was placed by Mr Dutch on a comparison with sentences imposed under s 306 of the Crimes Act 1961 for threatening to kill or do grievous bodily harm. Mr Dutch cited several decisions of this Court[6] and one of the High Court[7] involving s 306 offences where the sentences of imprisonment imposed ranged up to two and a half years. These sentencing decisions were the basis for Mr Dutch’s suggested starting point here of two years imprisonment.
[6]R v Chiyabi [2008] NZCA 10; R v Penney [2004] NZCA 172; R v Terry [2000] NZCA 79; Burchell v R [2010] NZCA 314.
[7] O’Connor v New Zealand Police HC Wellington CRI 2008-485-13, 17 April 2008.
We do not accept Mr Dutch’s arguments. They fail to address the gravamen of an offence under s 198B, which is the risk of death or serious injury from discharge of the firearm. The Judge was correct to emphasise this. In sentencing Mr Hone Daniels he said:[8]
The potential for other people to have been killed was very substantial. There were a large number of people present. If the gun had gone off, there was a strong chance that somebody would have been hit, even if it was not an aimed shot.
[8] At [17].
The Judge placed the offence in his second category, which he described as:[9]
The more serious offences would be those where there is a lethal weapon and there was some possibility of someone being killed.
In referring to that, we are not to be interpreted as necessarily endorsing the three bands of offences against s 198B which Judge Ingram devised for the purposes of sentencing Mr Hone Daniels.
[9] At [26].
We agree with the Judge’s focus on the lethality of the rifle. The evidence was that the rifle, when located in the boot of Mr Hone Daniels’ car, had eight rounds in its magazine. The risk that the firearm used could kill or cause serious injury is reflected in the maximum sentence of 10 years imprisonment for an offence under s 198B.
Ms Bicknell referred us to this Court’s judgment in R v Laws, a case not drawn to Judge Ingram’s attention at sentencing.[10]In a drug affected state, Mr Laws had discharged a shotgun through the window of his flat, and then shot out the windows of a car he unsuccessfully attempted to convert. After going to a neighbouring house, he pointed his shotgun at the woman who answered the door, demanding her carkeys. When she could not find them, Mr Laws put the barrel of the shotgun under her chin. He then drove into Christchurch city in one of this woman’s cars. Whilst stopped at set of traffic lights, Mr Laws pointed his shotgun at two women in the next car. After some dangerous driving he smashed into a truck. He then pointed his shotgun at an off duty police officer who had heard the accident, threatening to shoot him. Next Mr Laws tapped the barrel of the shotgun on the driver’s side window of a passing vehicle, but it drove off. He then got into another vehicle and pointed the shotgun at its owner when he approached. He drove off in this vehicle, smashing through two carpark barriers, before the vehicle broke down. By this time police officers had cordoned off the area. When the Police called on Mr Laws to lay down his weapon he refused, instead aiming it at the police officer who had called out to him. When Mr Laws again levelled his shotgun at that police officer, the Police fired a disabling shot at him. Mr Laws’ shotgun was found to contain a live cartridge.
[10] R v Laws CA401/98 31 March 1999.
Although not specifically identified, one of the many offences for which Mr Laws was sentenced appears to have been a charge under s 198B. The sentencing Judge had taken a starting point of 12 years imprisonment and reduced the sentence to 10 years to reflect Mr Laws’ early guilty pleas. In dismissing an appeal against that sentence, this Court said:[11]
... We agree with Mr Lange that the potential for serious injury or fatality was high, much of the offending taking place in a public area of the City. Not only was Mr Laws in a delusional state, but he was also driving a vehicle in an exceptionally dangerous manner while brandishing a loaded firearm. Indeed, it is fortuitous that no shots were fired. When called upon by armed Police to lay the weapon down he levelled the shotgun at the Police. At that point Mr Laws was fired upon by the Police thus preventing the possibility of a shot being fired by him. ...
[11] At [21].
Ms Bicknell readily accepted that Laws was a far more serious case than this one. Indeed, the Court of Appeal described the raft of offences committed by Mr Laws as “exceptionally serious”.[12] Nevertheless, Ms Bicknell submitted that the cases shared the common features that a loaded weapon was aimed at short range by an intoxicated (or in Mr Laws’ case a drugged) individual at an innocent stranger in a public place accompanied by threats to kill. And in each case there was a high potential for a fatality or serious injury. We accept the validity of a comparison between the sentencing starting point of four years challenged on this appeal, and the starting point of 12 years imprisonment taken by the sentencing Judge in Laws and upheld on appeal.
[12] At [21].
R v T is also relevant.[13]It involved an application by the Solicitor for leave to appeal against what he contended was a manifestly inadequate sentence. Had the application not been overtaken by events, the Court indicated it would have granted it and substituted a lead sentence of four years imprisonment on the charge of commission of a crime (assault) with a firearm. The Court expressed the view that the minimum starting point required was five years imprisonment.
[13] R v T [2011] NZCA 94.
Although we see only limited relevance in any comparison with the Mako guidelines, this observation by the Court in Mako[14] is relevant to this appeal:
The number and types of weapons and how they are brandished will bear upon the level of culpability. It is not to be assumed necessarily that the more potentially lethal the weapon the more serious the offence, although there will be greater danger of harm to a greater number of people where a loaded firearm is presented. ...
[14] At [39].
In Penney,[15] one of the s 306 cases cited by Mr Dutch, this Court endorsed the sentencing range of “between one to two years” taken by the sentencing Judge for a first s 306 offence. The penalty upheld in Penney was two and a half years imprisonment, reflecting that it was the third time Mr Penney had been convicted for threatening to kill his former partner. On this occasion Mr Penney made the threat to a psychologist employed by the Department of Corrections, who had taken the threat seriously enough to report it to the Police. Penney certainly did not involve threatening to kill a person with a firearm in circumstances that showed an intention to use it in connection with the threat to kill, as here. Any such threat by Mr Penney would undoubtedly have warranted a stiff uplift in the sentence, to around four years (probably more if it was a third offence). So the comparison with the sentence in a case like Penney loses any real force.
[15] R v Penney [2004] NZCA 172 at [16].
To summarise, we consider the starting point of four years imprisonment taken by Judge Ingram was open to him. Accordingly, Mr Hone Daniels’ appeal against sentence is dismissed.
Mr Ben Daniels’ appeal against sentence
We have outlined the facts of Mr Ben Daniels’ offending in [7] above. Mr Boot was not correct in submitting to us that Mr Ben Daniels had sold the stolen games on two occasions. As Ms Bicknell pointed out, the summary of facts records that he sold the games to the retail store on three separate occasions on 22 September 2009, and then returned to make a fourth sale on 6 October 2009. So there was offending on four separate occasions spread over two days.
Nevertheless, Mr Boot contended that the sentence of 150 hours community work was not the least restrictive sentencing outcome appropriate in the circumstances, as is required by s 8(g) of the Sentencing Act, and was manifestly excessive. Mr Boot argued that the sentence should have been a fine in the range $200-$500, or at most a sentence of 60 hours community work. The points he emphasised were that Mr Ben Daniels was 21 years old, was a first offender, and had been assessed by the reporting probation officer as being at low risk of re-offending.
Judge Tompkins mentioned all those things in his sentencing remarks, although he expressed “some caution” about the assessment of a low risk of reoffending. The Judge also noted that the pre-sentence report recommended community work and reparation, at least in part because Mr Ben Daniels assessed degree of remorse and insight was less than would ideally be desirable. The comment actually made in the pre-sentence report warrants repetition:
It appears, Mr Daniels has little to offer by way of remorse or insight into his offending behaviour. While he has described a clean living lifestyle, without alcohol or drugs, he has offered no thought or care for the victims of his offending, except to offer to pay reparation.
We are unable to accept that the sentence under appeal was either not the least restrictive sentencing outcome appropriate in the circumstances, or that it was manifestly excessive. Mr Ben Daniels’ offending was repeated on four separate occasions. He showed little or no remorse for it, causing the Judge to query whether he did in fact present a low risk of reoffending.
In all the circumstances, the sentences imposed were appropriate. Mr Ben Daniels’ appeal against sentence is dismissed.
Result
Mr Hone Daniels’ appeal, both against conviction and sentence, is dismissed.
Mr Ben Daniels’ appeal against sentence is also dismissed.
Solicitors:
Gavin Boot Law, Hamilton for Appellants
Crown Law Office, Wellington for Respondent
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